FRCP 37 (Discovery Rule: Failures, Motions, Court Orders, And Sanctions)

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What Is FRCP 37

FRCP 37, referring to Rule 37 under the Federal Rules of Civil Procedure, provides the legal basis for dealing with parties who fail to make proper discovery disclosures or collaborate in the discovery process.

The Federal Rule 37 is divided into six paragraphs as follows:

• FRCP 37(a): Motion for an order compelling disclosure or discovery
• FRCP 37(b): Failure to comply with a court order
• FRCP 37(c): Failure to disclose, to supplement an earlier response, or to admit 
• FRCP 37(d): Party’s failure to attend its own deposition, serve answers to interrogatories, or respond to a request for inspection 
• FRCP 37(e): Failure to preserve electronically stored information
• FRCP 37(f): Failure to participate in framing a discovery plan 

As you can see, a party to a lawsuit can present different types of motions when another party fails to adequately participate in the discovery process, namely:

• Motion to compel discovery of responses 
• Motion to compel production of documents 
• Request for court sanctions for noncompliance 

Let’s do an overview of each of the six paragraphs of the Federal Rules of Civil Procedure Rule 37.

Federal Rules of Civil Procedure 37 Overview

FRCP 37(a): Compelling Disclosure or Discovery

Under Rule 37(a) of FRCP, a party can present a motion to the court to compel another party to disclose documents or information, or to perform discovery.

As per FRCP 37(a)(1), the motion must indicate that the moving party has made a good faith effort to confer (or attempted to confer) with the person or party failing to comply.

Generally, the motion will be presented before the court where the civil lawsuit is pending (FRCP 37(a)(2)).

However, if the motion to compel targets a nonparty, the motion must be presented before the court where the discovery is intended to be taken.

In accordance with FRCP 37(a)(3), there are different types of motions that can be presented:

• Motion to compel disclosure when a party fails to make the Rule 26(a) disclosures 
• Motion to compel a discovery response if a deponent fails to answer questions asked under Rule 30 and Rule 31, corporation does not make the designation under Rule 30(b)(6) or Rule 31(a)(4), a party fails to answer an interrogatory under Rule 33, or a party fails to produce documents or fails to permit an inspection 

Evasive answers or incomplete disclosures can be considered as a “failure to disclose” (FRCP 37(a)(4)).

Under FRCP 37(a)(5), the court can render protective orders or require that the movant, a party, or deponent pay the reasonable expenses incurred for the motion.

For example, if the deponent’s actions were unreasonable necessitating the movant to present a motion, the court may order the deponent to pay the movant’s expenses for presenting the motion, including attorney’s fees.

FRCP 37(b): Failure To Comply With Court Order

Rule 37 Federal Rules of Civil Procedure provides for the legal basis when dealing with a party failing to comply with a court order (FRCP 37(b)).

In essence, sanctions can be sought by a party against the failing or defaulting party.

When a court orders that a person or party be sworn or answer a question and the person fails to respect such an order, the failure may be considered as contempt of court (FRCP 37(b)(1)).

There are different types of sanctions that can be requested in the district where the action is pending, such as:

• When a party, director, or managing agent does not obey a discovery order 
• When a party fails to produce a person for examination 

The measures that the court can take may include (FRCP 37(b)(2)):

• Direct that the matters contemplated by a party or designated facts be considered as established
• Strike parts of pleadings in whole or in part
• Stay the proceedings until the court order is respected 
• Dismiss the action against the party in whole or in part
• Render a judgment by default against the disobedient party
• Consider the failure as contempt of court

FRCP 37(c): Failure To Disclose or Provide Response

The rules of federal procedures also provide legal guidance with respect to a party failing to disclose information or document further to a document request or provide supplementary responses to an earlier response.

When a party fails to provide the information needed or fails to identify a witness as required under Rule 26(a) or Rule 26(e), then the party may not be authorized to use the same information or same witness as evidence in court (FRCP 37(c)(1)).

When a motion is presented under FRCP 37(c), the court may render different types of orders, such as:

• An order to have a party pay the other party’s reasonable expenses including attorney’s fees
• May present the party’s failure to the jury so they are informed 
• May impose any other sanctions that are appropriate in the circumstances 

When a party fails to admit a fact or certain aspect under Rule 36, the moving party may request that the failing party pay reasonable expenses, including attorney’s fees, for having to make the proof if the party is able to prove the matter to be true (FRCP 37(c)(2)).

FRCP 37(d): Failure To Attend Deposition or Serve Answers

A party that fails to attend his or her own deposition, serve answers to interrogatories, or respond to a request for inspection may be subject to sanctions under Rule 37(d) FRCP.

Under FRCP 37(d)(1), a court may, on motion, order the sanctions when:

• A party, party’s officer, director, or managing agent fails to appear for the deposition
• A party served with interrogatories under Rule 33 or inspection request under Rule 34 fails to answer, provide objections, or provide written response 

A failure to respond on the grounds that the “discovery sought was objectionable” is not a valid excuse unless the party failing to respond has a pending motion for protective order presented under Rule 26(c) (FRCP 37(d)(2)).

FRCP 37(e): Failure To Preserve Electronic Information

FRCP Rule 37 in its paragraph (e) deals with a party’s failure to preserve electronically stored information in the anticipation or conduct of litigation.

In the event electronic information is lost where it should have been preserved in anticipation of litigation or a lawsuit, and it can no longer be restored, the court may render different types of decisions, such as:

• Upon finding the prejudice, order measures necessary to cure the prejudice (FRCP 37(e)(1))
• If the party acted with the intent to deprive the other from the information, the court may presume the information to be unfavorable to the party, instruct the jury to presume the information as unfavorable, or dismiss the action (FRCP 37(e)(2))

Rule 37(e) is a significant legal obligation that must be observed by individuals and businesses who may hold lots of data and information electronically.

Due to the possible consequences of FRCP 37 e, it may be worth consulting with a trial attorney or civil attorney to better understand this rule so you can ensure you comply with it.

FRCP 37(f): Failure To Frame A Discovery Plan

The last paragraph of the Federal Rule 37 deals with the failure of a party or a party’s attorney to participate in preparing and finalizing a discovery plan.

In essence, if a party, or a party’s attorney, fails to develop and submit a discovery plan in good faith as per Rule 26(f), the court may order the party to pay the other party’s expenses, including attorney’s fees, for the failure (FRCP 37(f)).

Rule 37 FRCP Takeaways 

So, what is rule 37?

This article is intended to provide you with general information related to FRCP 37 and the Rule 37 sanctions.

The laws change and are continually updated, it is important that you ensure you review the latest version of the FRCP rules to ensure you properly comply with it.

You can also consult a qualified attorney who understands civil lawsuits, litigation, and has dealt with the Federal Rules of Civil Procedure to guide you and provide you with legal advice.

Let’s look at a summary of our findings.

FRCP 37 (Fed R CIV P 37)

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